INTERVIEW WITH PROFESSOR KARIN BUHMANN TO BOLETIM ACAUÃ
CONDCUTED ON 24TH MARCH 2022 AT UNIVERSIDADE DE SÃO PAULO
LAUNCHING SESSION OF HER BOOK “HUMAN RIGHTS: A KEY IDEA FOR BUSINESS AND SOCIETY”.
PROFESSOR CLAUDIA: So, we will be starting just now our interview. Today is 24th March 2022. Our interviewee is Professor Karin Buhmann, from Copenhagen Business School. She is also Head of Center for the research initiative Center for Law, Sustainability & Justice. I would like to start by thanking you for giving us this interview and to register to our audience that we previously agreed on the questions involved in this interview. So, the first question is: How would you characterize the interdisciplinary endeavor involved in the construction of the Business and Human Rights (B&HR) subfield? How have you been experiencing it in your career? If you can talk a little bit about how you came to this topic, to the field, it would be really good, since now you are one of the most prominent intellectual entrepreneurs of this field.
PROFESSOR KARIN: Thank you very much for your kind words. Well, I think maybe I would like to start with the second part of the question. I was trained in Human Rights Law. I worked in the Danish Ministry of Foreign Affairs in the late 1990s and there were some different events, both actually in Asia, that led many people, at least in Europe, to question the responsibilities of business enterprises regarding human rights. So, being trained as an international lawyer, my perception was that human rights’ obligations were state obligations. Many other people who had a Law background had that conception because that was part of our international law training. But some people NGOs [Non-Governmental Organization] and other civil society organizations asked: Why shouldn’t businesses have responsibilities for human rights? I thought that was a very interesting development, to witness this evolution in societal perceptions and expectations on businesses. That evolution also suggested a potential shift in ideas of who has responsibilities under international law for human rights, because non-state actors are not normally recognized to have such responsibilities. Soon after I began work on my PhD thesis. It was on another topic but following that, I thought I would really like to try to work with the topic of what we at the time referred to as corporate social responsibility (CSR).
What struck me was that many of the discussions on CSR related to child labor, slavery, occupational health, and safety, working conditions, workings hours, all of which are human rights issues. Also, environmental impact and climate impacts that are part of the CSR debate relate to human rights issues. Everywhere I looked; I saw people having social expectations on companies that were actually bound on companies respecting international human rights norms. Although people didn’t talk about these as international human rights, it was just becoming a common expectation of companies, based on the same normative ideas as those that relate to what the state does and should do. It became increasingly common to expect that, of course companies should also respect these rights. I thought that was very interesting.
I previously had a position in academia and then I applied for a job to go back into academia and continue to examine the issue of corporate social responsibility. And what I’ve seen is that looking at the debate on CSR that we had in the early 2000s, the B&HR regime has emerged as something that is different from CSR in that it is tied up on a minimum baseline of normative conduct, which is international human rights and the ILO core labor rights whereas for CSR, companies have a choice. CSR does not have that minimum baseline. Second, BHR is victim-driven, whereas CSR is generally said to be business-drives. B&HR is really driven by victims or, rather, NGOs that represent the interest of victims. Third, B&HR also gives states an important role. This is seen in the three pillars of the UNGPs: respect, protect and remedy. States have a major role through the state duty to protect human rights. Much of the CSR literature almost seems to argue that the state has vanished, and it has no role in governing business conduct. However, much of such rejection of the state is done without considering the fact that one of the reasons why states are often seen as absent in regulating companies’ transnational operations is that they don’t have the power due to jurisdictional limits in national law and because in international law, companies have basically no role.
So, I was also curious to see this as an academic challenge, to address this conception that the state is absent. Because I don’t think the state is absent because it simply wants to be absent, but because of politics. International politics, the legal system and international relations actually lock states in, or lock them out of being able to actually regulate as they might like to when it comes to transnational business conduct.
This is an important backdrop for the evolution of the B&HR regime and its evolution. When we look into the development of the key BHR instruments, the UN Guiding Principles (UNGPs) and the UN ‘Protect, Respect and Remedy’ Framework (UN Framework) from 2008 on which the UNGPs rely, both of which are is based on the work of Professor John Ruggie from Harvard University and his team, these are very interdisciplinary. In particular, the UN Framework is developed in an academic-analytical fashion, with several sub-studies comprising thousands of pages. Many people are not aware of this immensely rich analytical backdrop, so they see the 30 pages of UN Guiding Principles and say, “how can you deal with something as complex in 30 pages?” And you can’t. But the Guiding Principles are built on hundreds of pages of analytical reports that fed into the UN Framework, so these are a very detailed study. With his team, John Ruggie came to the field engaging with the various actors and underlying academic perspectives, of business ethics, of CSR, which is a very malleable field, of management theory, of stakeholder theory, and, of course, international law and human rights law. Regarding international law, they really pulled out the state duty to protect human rights against third-party infringements and the horizontality sub-doctrine and gave this a lot of recognition.
PROFESSOR CLAUDIA: I will just say that you already addressed the second question in terms of the existence of a business and human rights international regime, so I think that you have already covered that, but I will still ask you how you would distinguish the business and human rights regime from the wider human rights international regime itself? How do they complement each other and overlap each other?
PROFESSOR KARIN: That’s a very good question, because of course B&HR can be considered something that emerges from the general human rights regime. The general human rights regime jumps off from the legal perspective from the international law regime, and the international law regime basically is about obligations that the states have, originally to other states. It was innovative when the human rights discourse called for the recognition of states also having obligations under international law vis a vis individual. This led to soft international law, like the Universal Declaration of Human Rights, and hard international law that states have actually accepted. B&HR is another innovation or expansion, by addressing non-state actors as essentially duty bearers. This is so far from mainly a soft foundation, but now we’re seeing a change, for example with the proposed EU Directive on mandatory human rights and environmental due diligence. We’ve seen this as a change in various national regimes, establishing obligations on operations to engage in due diligence, that is, human rights due diligence, with transnational implications. So, the B&HR regime really differs from the general human rights regime by recognizing corporations as duty holders, that is, non-state actors as duty bearers, which is very unusual in international law. There are just a few other types of non-state actors recognized to have obligations, and there is still a sort of debate around this. The BHR regime is unusual in international law also by recognizing actors whose main purpose is really to somehow make profit. That purpose is also recognized by the UN Guiding Principles and the UN Framework, which recognized business organizations as specialized organs of society with special functions. So, it’s not that they have the same obligations and responsibilities as states, but they do have responsibilities. So far, these are not legal duties in international law as states has.
The treaty that is being developed on business and human rights might have been an opportunity to create legally binding duties for corporations under international law. The way it looks now, it’s more likely to result in obligations for states, that states will have to implement for companies, somewhat similar to the approach of the UN Convention Against Corruption that uses a similar model.
PROFESSOR CLAUDIA: States will need to constrain enterprises, but not a direct constraint.
PROFESSOR KARIN: Yes, exactly. Not a direct responsibility under international law.
“So, the B&HR regime really differs from the general human rights regime by recognizing corporations as duty holders, that is, non-state actors as duty bearers, which is very unusual in international law. There are just a few other types of non-state actors recognized to have obligations, and there is still a sort of debate around this.”
PROFESSOR CLAUDIA: Professor, I think you have already made a connection with the third question, but is it possible to affirm that human rights obligations of business actors are evolving?
PROFESSOR KARIN: I think definitely they are, what we’ve seen is actually a very, very fast evolution of an acceptance that businesses have responsibilities for human rights, leading to obligations being developed and affirmed in national law. The interesting thing is that there was a lot of opposition to this initially, not from all businesses, but from some big international business associations that lobbied very strongly against the idea of business responsibilities for human rights that was initially proposed with the so-called Draft Norms on Business and Human Rights. The result was that the UN Human Rights Commission rejected these ‘Draft Norms’. But then, other business enterprises went to their governments and said “Well, actually it would be very useful for us to have something to help us understand how we should navigate this very complex issue, because we meet very clear social expectations. We can see that there are a lot of reputational risks, and we find it very difficult to know what we should do and what we should not do. So, we would actually appreciate some kind of instrument and guidance”. And once that project got going with the UN it led to the UN Framework; the UN Framework got accepted; and that created the foundation for the UN Guiding Principles. And from the Guiding Principles, core elements like due diligence, the concept of meaningful stakeholder engagement, and leverage have been taken up by many other transnational business governance instruments. That is now also leading to or influencing national legislation. And of course, also National Action Plans [NAPs].
PROFESSOR CLAUDIA AND RAFAEL: Some Latin American countries have NAPs, but Brazil does not have yet. Rafael has been mapping these NAPs in his Masters’ research.
There is a draft of a national law on B&HR now being debated here. But it’s really in the beginning and it’s in its first round to be publicly debated: a first draft, a first discussion session. A very first movement. And it is not a governmental movement. It’s much more from civil society and academia than from the government.
PROFESSOR KARIN: I think it’s really interesting that we can observe this development towards a sort of a hardening of business obligations for human rights, but I think it also creates human rights challenges because one of the major issues is when we look at something like human rights due diligence, which is supposed to be an ongoing process for companies that focuses on the results, meaning doing their due diligence so that impacts are identified and addressed continuously. When this is to be converted into a legal obligation where companies will have to comply with a specific obligation, this causes new challenges. For example, the French Loi Vigilance or in the Netherlands child labour due diligence law, which in essence demand enterprises have a due diligence plan. Companies may have a due diligence plan. So, the big challenge is how to ensure on-going and continuous due diligence and not just have the company say, “OK we have our due diligence plan that we are required to have.” The challenge is to keep companies’ minds on the ongoing exercise and ensure that mandatory due diligence does not just become a compliance exercise.
There are a lot of different types of certification regimes. They sometimes have more of a compliance approach than a risk identification and mitigation approach. There are very many business’ impacts on human rights that cannot be repaired, no matter how much money you put into it, or how matter you certify. Just try to think of all the occupational health and safety accidents that we hear about in the media. Or if somebody loses their finger or hand or an arm. No matter how much money you pay them, it’s not going to give them back their finger, hand, or arm. And if somebody loses their mother in an accident where a building collapses, or for that matter, if somebody loses their mother, brother, father in an accident if a dam collapses? No matter how much money you pay them, they’re never going to get that person back and that’s one of the main issues to keep the focus on: do no harm. Which really, really means that business and human rights is about prevention. It doesn’t mean that remedy is not important. But upscaling prevention is the most important thing because it’s the only way to deal with something that cannot essentially be restored. Even if the harm caused does get restored to some extent, people will have suffered a lot of mental stress, which also ideally it should be prevented. This is a very complicated issue. We must think very carefully about how we legislate on due diligence to ensure that no harm is actually done. It is not an easy thing to legislate.
PROFESSOR CLAUDIA: Something that called my attention while reading your last book [Human Rights: a key idea for business and society, Routledge, 2021] is that you mention that human rights implications are not always in the frontline of some norms that business actors tend to observe, such as the 2030 Agenda and the Sustainable Development Goals (SDGs). Is this absent direct link helpful in terms of engaging business actors with these norms? Do you see a resistance of these actors in operating through a human rights grammar?
PROFESSOR KARIN: So, I think there are many layers. One thing to keep in mind if you want business enterprises to change, it that it is useful to consider them as any other societal actor or an individual whose conduct you want to change. You need to think about how you can make them change their conduct. In order to make somebody change the way they act; you need to somehow address a language or logic or something that’s meaningful to them. If someone wants me to put a face mask here in Brazil, for example, and I don’t speak Portuguese, I will not understand it. If they can tell me in English or they can show me in sign language, I will understand it. I think that regarding that mask, going back to COVID for the sake of the example, what we saw was that when the crisis broke in 2020, in many places individual people adapted quickly. I don’t know about the situation in Brazil -, but in Denmark a lot of companies also self-regulated to allow people to work from home, introducing hand sanitizer, and place people at distance when at work. All of this happened before we had the actual lockdown directed by the government before the government started to see this was a problem. And why was that? Because it was something that was essentially for human being about life and death. But it was also that companies wanted to prevent things from getting worse in the face of a very dangerous virus. If it did, they too would need to lock down, and that would cost them too. So, it is also about life and death for them.
PROFESSOR CLAUDIA: It is about prevention, as you mentioned previously.
PROFESSOR KARIN: Yes. So, if you want to get somebody to act in a particular way, you really need to understand why it is important not just for you and from your perspective, because usually they don’t care about your perspective, but why it is important from their perspective. So, that’s why, for example, we use the term of ‘affected stakeholders’ for victims, and ‘affected stakeholder engagement’, that is because companies are familiar with the stakeholder term. They’re maybe not familiar with thinking about victims? Mangers are trained to thinking about stakeholders and they may also not be thinking so much about communities, but then once you tell them their communities are ‘affected stakeholders’, they would understand both that they can affect these stakeholders, and that they can affect the company if the company does not take account of their concerns. So, this is not to say that affected stakeholders are not victims if they were subjected to harm. But if you start to talk to corporate managers about human rights victims, they will often say, “well, OK, that’s not my competence; please go and talk to the lawyers“. If you talk in terms of stakeholders, they will say “OK, Iet’s try to talk to these stakeholders’ ‘.
PROFESSOR CLAUDIA: You’re right. It’s a sort of translation, isn’t it?
PROFESSOR KARIN: Precisely. It’s a translation. We can think about this in many ways if we want to operationalize business human rights in a company context. One of the points is how to explain a business & human rights issue in a way that is meaningful for the company from their perspective. Once they understand it, we can start to say: “OK. By the way, this is a human rights issue.”
Regarding the 2030 Agenda and the SDGs, this has been an issue that has been really criticized. That the SDGs is very vague on human rights and they’re also very vague on “do no harm” issues. From a Business & Human Rights perspective, there is this very interesting clause on implementation, paragraph 67 of the Agenda 2030, that mentions the UN Guiding Principles. Like almost all other parts of the 2030 agenda actually address States, but it does tell States that when anyone works with companies or try to get companies to be partners for the implementation of the SDGs, they shall not forget to respect human rights and they should know about and work with the Guiding Principles.
Not many people are aware of this reference to the UNGP also because when we generally talk about the SDG, we mainly see the 17 icons or just the headings. I think that some more attention could be given to the details of the 17 SDGs and the implementation provisions. There are some arguments that just by respecting human rights, businesses could really contribute to the SDGs. But from the perspective of businesses, usually that’s not enough for them, because they also want to be seen as doing good. That’s in line with the language of the SDGs and the language around corporate social responsibility. So, here I think the point is to tell companies it’s really good to do good but doing good doesn’t eliminate or balance out the harm you did. And when you do want to do good, make sure you consider the UNGPs in everything you do. Not just your SDGs efforts.
PROFESSOR CLAUDIA: Yes, you are right. Let’s consider not just the positive aspect of the normative landscape.
PROFESSOR CLAUDIA: Just moving to the fifth question, because we are interested in knowing your opinion about the EU [European Union] innovations to enhance corporate accountability and you mentioned the question of having more rigid legislation on due diligence. So, how would you see the Draft Directive on Corporate Sustainability Due Diligence? Is it important to have this global standard coming from Europe? What do you think about it?
PROFESSOR KARIN: I think it’s really interesting to see how fast this has developed, and I think it’s very interesting to see how Europe as such has moved in this field. It’s potentially a very interesting way to shape business and human rights in the future and really get companies to pay attention to their human rights’ impacts. Now, as you’re probably aware, the Draft has been in the making for some time. Still, it’s been a very fast-moving process for EU law-making. It’s impressive to see how fast the EU has responded, also talking about other aspects of business and human rights related issues with the integration of due diligence into the 2014 Non-Financial Reporting Directive and now into the Corporate Sustainability Reporting Directive. But we don’t know enough about the effects of these types of reporting, but the fact that from the global trade perspective a big block like the EU engages in something like this is interesting. These legislative steps that can have really wide implications and be a model, not necessarily the best model, but the model that other countries can use to say “OK, if they can do it, we can do it”.
PROFESSOR CLAUDIA: Yeah, they can mirror, to a certain extent, the model.
PROFESSOR KARIN: And also, maybe give countries and companies that are working from the Global South a little bit of some good arguments, to say, for example, to companies who are working in the mining sector “hey, you know, you’d better do your due diligence because it is really something being expected”.
PROFESSOR CLAUDIA: Just to end our interview, how do you see the next steps of the international norm-making around global sustainability and business and human rights norms? We discussed some perspectives, but in a very petit committee format, but assuming that our audience here is undergraduate students, how would you pose the challenges and the next steps in this agenda?
PROFESSOR KARIN: Really, really good question. I think it would be interesting to see what happens with the Global Treaty on Business and Human Rights because if it is adopted, that’s definitely going to influence this agenda. It is going to be interesting to see what happens with the proposed EU Directive is adopted and whether that would end up being a model, maybe for some other countries. I think it would be interesting to see what comes out of the current stock-taking of the OECD [Organization for Economic Cooperation and Development] Guidelines [For Multinational Corporation], maybe with a revision of the Guidelines.
PROFESSOR CLAUDIA: A balance of ten years on?
PROFESSOR KARIN: I think it will be interesting to see to what extent gradually the Fair Transitions discourse will also be affecting the way that different actors, for example, financial institutions, engage with different investments for the fair transition and ensuring that human rights are respected. So that’s just a few thoughts. And then again, this agenda has been so much driven by all sorts of events we were not expecting. For example, the Rana Plaza collapse really kicked off an entire new way of doing these things.
PROFESSOR CLAUDIA: The next tragedy or something like this, right?
PROFESSOR KARIN: Right now, we’ve got to a debate also on the human rights responsibilities of companies operating in Russia following the invasion of Ukraine. So, it’s really hard to predict because something might happen.
PROFESSOR CLAUDIA: And really redirect the agenda! Many thanks. It was great. Thank you so much for your time!
PROFESSOR KARIN: You are welcome!
Karin Buhmann holds a Ph.D. in Law from Aarhus University, Denmark. She is a Professor in Business and Human Rights at Copenhagen Business School and Professor and Head of the Centre for Law, Sustainability & Justice at Syddansk Universitet— University of Southern Denmark. She is member of the Danish National Contact Point under OECD’s Guidelines for Multinational Enterprises, member of the Board of the Danish Institute for Human Rights, member of the Human Rights Impact Assessment working group under the Danish Initiative for Ethical Trade (DIEH) and member of the Human Rights and SDG working groups under the Danish Global Compact Network. Co-founder and chair of The BHRights Initiative for global interdisciplinary research and teaching on Business & Human Rights and co-founder and chair of a global research network on socially responsible transitions GREEN-SORT – Global Research and Engagement Network for Socially Responsible Transitions.
Interviewers and general revision
Cláudia Alvarenga Marconi holds a PhD in Political Science and currently professor of International Relations, Jean Monnet Chair Holder and Jean Monnet Module Academic Coordinator at FECAP Business School. She is also professor of International Relations at PUC-SP and at International Relations Graduate Program San Tiago Dantas (UNESP/UNICAMP/PUC-SP).
Rafael de Souza Nascimento Miranda is a specialist in International Business and currently Executive Coordinator of Brazil-European Union Institute, of Jean Monnet Chair and of Jean Monnet Module at FECAP Business School. He is a student in the Graduate Program of International Relations at University of São Paulo (IRI-USP), in the research line International Political Economy, conducting research on Business and Human Rights.
Giovanna Rodrigues de Melo Aguiar is an International Relations undergraduate student at FECAP Business School.